Village greens, public bodies and "statutory incompatibility"

The concept of “statutory incompatibility” in relation to the registration of village greens was tested at the Court of Appeal in the conjoined cases of R (Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs and another and Jones v NHS Property Services.

The main question the Court of Appeal asked was: did the concept of “statutory incompatibility” defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? In other words: if land is held for a specific statutory purpose, then would registration of the land as a town or village green be incompatible with the continuing use of the land for those purposes? The upshot of the rulings in these two cases is that the Court of Appeal has decided that there is no blanket exemption from registration of land as a town or village green for land held by public bodies for the purposes of their performance of statutory powers and duties. Registration would only be prevented if it would clearly impede, or prevent or restrict the exercise of any statutory power, or the discharge of any statutory duty, relating specifically to that particular land.

The Court of Appeal decided in the Lancashire case that a school field could be registered as a village green notwithstanding that it was held for statutory educational purposes because those provisions were “general in their character and content”. The Court of Appeal also allowed the appeal in the NHS case, finding that the statutory provisions related to health which were relied upon for the purposes of the appeal were also not specific enough. In neither case were there specific statutory duties or functions in relation to the land which would have been prevented or hindered by its use for public recreation after registration.